Modern markets often reward those who can grab customer attention using visual shorthand. While many business owners spend their time protecting logos or patenting new inventions, a significant part of their actual value lies in how their products look.
Competitors have become very good at subtle imitation. They rarely steal a brand name outright because that often leads to a costly legal judgment. Instead, they carefully develop their products to mimic, to a degree, the specific look and feel of a market leader. This allows them to capitalize on customer trust without using a protected trademark name.
This tactic is often called look-and-feel copying. It involves using similar layouts, color palettes, digital interfaces, etc. The advantage is that users already associate these elements with a successful brand.
When a company pours what can be millions into user experience and research, seeing a rival launch a product with a nearly identical appearance is frustrating, to say the least. Fortunately, there is a powerful legal solution that many firms overlook: trade dress protection.
This specialized area of law is one that every business owner should familiarize themself with.
Trade Dress Rights: What Are They and What Do They Cover?
Trade dress is not a separate legal framework. It functions as a specific branch of trademark law that covers a product’s overall appearance. Companies focus on trade dress because it helps buyers recognize the product and understand who produced it. Trade dress is a specific aesthetic that serves as a visual signature.
Because it focuses on the general commercial impression, the list of items that can be protected is quite broad. The following categories are typically recognized as valid components of trade dress:
- Packaging and configuration. This includes the unique shape of a container, the specific graphics on an exterior box, and the overall color scheme of the brand.
- Digital user interfaces. In the tech world, this covers the layout of software dashboards, visual workflows, and the navigation structure of a platform.
- Product design. This relates to the physical shape of the item itself, provided the design choices are not forced by functional needs.
- Service presentation. This can include the interior decor of a retail space or the specific layout of a digital storefront.
Ultimately, the goal of these rules is to prevent confusion. When a potential buyer sees a specific visual style, they should be able to rely on the fact that it comes from the source they recognize.
Navigating the Complexity of Legal Requirements
Winning a trade dress case is generally more difficult than winning a standard trademark dispute. A brand name can sometimes gain protection the moment it hits the market. Trade dress must pass much higher tests to be enforceable. The law demands that the visual style be both distinctive and non-functional.
Distinctiveness is a difficult hurdle to clear. A firm must prove that the public associates a specific visual style exclusively with their offerings. This is referred to as secondary meaning. Imagine that a software firm uses a specific shade of green and a particular layout for its tools. The business must be able to show that users see that color as a brand signature. Consistent use over several years is usually the only way to build this kind of recognition.
The rule regarding non-functionality is also crucial to understand. If a design element is necessary for the product to actually work, you can’t protect it as trade dress. For example, if a specific shape makes a device easier to hold or cheaper to build, it is considered functional. Functional features belong to patent law rather than trademark law. Trade dress is reserved for aesthetic choices that serve only to identify the brand.
While these characteristics can be challenging to prove, they lead to a right that is incredibly strong once it is established.
The Commercial Drive for Visual Imitation
In crowded tech and service markets, visual similarity is almost never an accident. Companies often copy successful designs to make their own products feel familiar to shoppers. By making a product that looks like a market leader, a secondary player can essentially “steal” credibility without doing the hard work of building a brand. They position themselves as a safe alternative while benefiting from the leader's marketing budget.
Courts are starting to pay much closer attention to these behaviors. There is a growing legal consensus that copying the presentation of a service is just as harmful as copying a logo. When a rival blurs the lines of identity, they steal the value that the original brand created. For firms that invest heavily in design, trade dress is one of the only ways to stop this kind of theft.
Trade Dress Enforcement and Government Entities
For contractors working with government entities, it is common but risky to think that branding doesn’t matter in the public sector. They assume that because the government buys based on specs and price, visual identity is irrelevant. Unfortunately, this view ignores several legal and strategic considerations, including the fact that many contractors develop products that have both commercial and federal uses. Protecting a product's identity in one market makes it much stronger in the other.
Legal protections for trademarks also remain very strong in government work. While government entities often take rights to patents and copyrights, they don’t usually ask for trademark waivers. Most importantly, the federal government has waived its sovereign immunity for trademark infringement under the Lanham Act. This means a contractor can sue to enforce its trade dress rights even if the government is the entity using the infringing item.
Bottom line: Contractors must treat the products involved in government contracts with the same brand discipline they use in the private sector.
If a rival tries to copy a look-and-feel to win a bid, trade dress protection provides a clear path for legal action. It prevents other companies from profiting from the reputation and success a contractor spent years or even decades building.
A Unified Strategy for Protection
The value of a brand often moves across different industries. A software tool that becomes a standard for a federal agency gains massive prestige when it is eventually offered to private firms. If the visual identity is not protected early, a competitor could copy the interface and steal the trust that the original developer earned.
At Martensen, we suggest that clients treat trade dress as a core part of their strategy. It is no longer enough to just protect a name. In an age where imitation is a standard business tactic, protecting a product's look and feel is a requirement. Securing these rights during development ensures that a firm can defend its market share. Companies that ignore their visual identity leave the door open for others to profit from their innovation.
Contact Martensen to learn more about trade dress protection and discuss your challenges.